Article 2 inquest not required if only a “mere error or medical negligence”

The ECHR Chamber judgment in Lopes (15 December 2015) had the potential to expand the situations where a Middleton style “Article 2 inquest” would be required. The Chamber judgment appeared to widen the scope of Article 2 protections to incorporate errors of judgment on the part of health professionals and miscommunication between hospital departments. If poor judgment calls and miscommunications were now to be considered a substantive breach of Article 2 then many hospital deaths would require an inquest fully compliant with Middleton principles. It was perhaps only the unavailability of the judgment in English that held back the flood. [1]

If poor judgment calls and miscommunications were now to be considered a substantive breach of Article 2 then many hospital deaths would require an inquest fully compliant with Middleton principles.

However, the Grand Chamber of the European Court of Human Rights (“the Court”) has now reversed the previous Chamber judgment and held, by a 15:2 majority, that there was no violation of the substantive limb of Article 2 in respect of ‘merely’ negligent hospital treatment.

The judgment provides important clarification on substantive Article 2 claims and would appear to limit such claims in the healthcare sphere to cases of a denial of life-saving treatment caused by systemic/structural issues rather than individual error. The Court has now made clear that “mere error or medical negligence” is not sufficient.[2]

The case however remains of relevance for inquest practitioners as the Court upheld the finding that there had been a violation of the procedural limb of Article 2 owing to the delay in implementing the extant state structures to investigate the death.

The facts

On 27 November 1997 the deceased underwent a nasal polypectomy under the care of the ENT department at hospital and was discharged the following day. On 29 November 1997 he attended the hospital emergency department with violent headaches and agitation. Having initially been treated for psychological problems with tranquillisers and after a delay of some nine hours, a lumbar puncture revealed bacterial meningitis and he was admitted to the hospital’s intensive care unit. Thereafter, the deceased’s bacterial meningitis and cerebral oedema were treated and his clinical condition improved. He was subsequently diagnosed with two duodenal ulcers shortly before discharge on 13 December 1997.

The deceased’s symptoms continued however and he was admitted on several occasions for GI investigations. The deceased was admitted to a different hospital from 17 February 1998 with chronic diarrhoea and microcytic anaemia. Infective ulcerative colitis, C-difficile infection and other possible causes were ruled out. On 6 March 1998 the deceased’s condition deteriorated. He was examined for a possible perforated viscus but this was not confirmed on x-ray or ultrasound. At 15:00 the following day peritonitis was suspected and he was transferred to surgery. He sadly died in the early hours of 8 March 1998. The death certificate recorded septicaemia caused by peritonitis and a perforated viscus as the cause of death.

The applicant’s claim

The applicant submitted that her husband had lost his life as a result of a hospital acquired infection and of various instances of medical negligence which occurred throughout his treatment. In particular, she claimed:

that her husband had been infected at the hospital by the Pseudomonas cepacia bacterium, which had caused her husband’s meningitis;

that a serious error of diagnosis had been made when her husband had attended the emergency department on 29 November 1997;

the hospital had allowed a life-threatening infection to develop, which had then had to be treated with very high doses of medication with extremely damaging gastrointestinal side effects;

that the decision to discharge her husband on various dates had not been accompanied by the requisite medical follow-up; and

that the perforated duodenal ulcer had been diagnosed well before the surgery performed on 7 March 1998.

The substantive limb

The Chamber had found the medical evidence supported a delay in diagnosis of the meningitis and a lack of co-ordination between the ENT and emergency departments. These, it was held, founded a substantive violation of Article 2 based on the deprivation of appropriate emergency care. The relevant line of case law referred to by the Chamber was Senturk v Turkey (13423/09) and Genc v Turkey (2401/07). These cases concerned, respectively, the deaths of a pregnant woman and new-born baby who were refused admission to hospital and not provided with appropriate emergency medical care.

The Grand Chamber considered a substantive violation in the present case would be a departure from the existing case law and provided guidance on the “very exceptional circumstances” which engaged State responsibility under the substantive limb of Article 2 in respect of acts and omissions of healthcare providers. The following factors, taken cumulatively, must be met (§§193-196):

First, the acts and omissions must go beyond a mere error of medical negligence in so far as those healthcare providers, in breach of their professional obligations, deny a patient emergency medical treatment despite being fully aware that the person’s life is at risk if that treatment is not given;

Second, the dysfunction at issue must be objectively and genuinely identifiable as systemic or structural in order to be attributable to the State authorities, and must not merely comprise individual instances where something may have been dysfunctional in the sense of going wrong or functioning badly;

Third, there must be a link between the dysfunction complained of and the harm which the patient sustained; and

Fourth, the dysfunction at issue must have resulted from the failure of the State to meet its obligation to provide a regulatory framework.

On the facts the Court found that the present case did not fall within the remit of Article 2 as it was not a denial of treatment case:

“The Court observes that in the present case the applicant did not complain that her husband had been denied access to medical treatment in general or emergency treatment in particular. Nor is there any information in the case file which would suggest such an issue in the present case. Rather, the applicant complained that the medical treatment provided to her husband had been deficient because of the negligence of the doctors who had treated him. In the Court’s view, an alleged error in diagnosis leading to a delay in the administration of proper treatment, or an alleged delay in performing a particular medical intervention, cannot in themselves constitute a basis for considering the facts of this case on a par with those concerning denial of healthcare.” (§200)

Contrary to the Chamber’s judgment, the Court also made clear that a lack of communication between hospital departments did not, in and of itself, amount to a dysfunction engaging the State’s Article 2 obligations. What is required is required is structural or systemic dysfunctions.

The procedural limb

The Court upheld a violation of the procedural limb of Article 2 in finding that the domestic investigation of the complaint was not adequate or timely. In terms of adequacy of investigation, this a potentially surprising conclusion given the case was reviewed by regulators, criminal and civil courts.

The Court’s concern was what it considered to be the focus on direct causation of the death in the domestic investigation and the insufficient examination of possible causes. In this case, the Court was particularly concerned that hospital acquired infections be thoroughly investigated. The Court said that:

“…for the purposes of the procedural obligation of Article 2, the scope of an investigation faced with complex issues arising in a medical context cannot be interpreted as being limited to the time and direct cause of the individual’s death. The Court cannot speculate on the reasons why the origin of the bacterium which caused the applicant’s husband to contract meningitis could not be established at domestic level. It finds however that, where there is a prima facie arguable claim of a chain of events possibly triggered by an allegedly negligent act that may have contributed to the death of a patient, in particular if an allegation of a hospital-acquired infection is concerned, the authorities may be expected to conduct a thorough examination into the matter. The Court considers that no such examination was conducted in the instant case, in which the domestic courts, instead of carrying out an overall assessment, approached the chain of events as a succession of medical incidents, without paying particular attention to how they may have related to each other.” (§237):

The Court rejected the following investigatory flaws alleged by the applicant (§237):

An autopsy was not required as the criteria under domestic law were not engaged.

Investigation of the deceased’s consent to polypectomy (and the rare risk of meningitis following the procedure) did not have to be investigated where there was no specific complaint before the domestic courts.

Comment

This is an interesting judgment for inquest practitioners. The conclusion on the substantive limb supports arguments that hospital deaths, even those where negligence is suspected, would not ordinarily engage the protections of Article 2. It may be argued accordingly that a narrower Jamieson type inquest should follow.

Conversely however, the Court has emphasised the need for a wider ranging investigation in relation to possible contributory causes of the death where there is arguable negligence in a hospital setting. This is particularly so in cases of hospital acquired infection and practitioners arguing for an investigation of similar public health circumstances in a death will find support in this decision. Hospitals and other healthcare bodies may wish to head-off such arguments by covering issues of hospital acquired infection in their internal serious incident investigations/root cause analysis where not routinely investigated.

In clinical negligence claims, it would appear the duty under the substantive limb of Article 2 will largely be limited to employment of competent and trained professional staff and the imposition of systems which will protect the lives of patients following the line of case law in Powell and, domestically, in Savage and Rabone. “Mere error or medical negligence” is not sufficient.

There may be exceptional circumstances of a complete denial of treatment which comes within the ambit of Article 2. But the emphasis here however is the responsibility of the State due to systemic defects rather than the error or omission of the individual. Although it would be hoped that denial of treatment cases would be rare, cases were there has been a failure to admit a psychiatric patient might fall in such a category. In the sphere of physical medicine, deaths involving the unattended patient left on the A&E trolley, cancellation of scheduled operations, delay due to lengthy waiting-lists and lack of hospital beds are the types of case where the engagement of substantive Article 2 duties will need to be considered in the Coroner’s Court.

[1] The Chamber judgment was handed down in December 2015 but only in French, with an official English version not appearing until 28 March 2017.

[2]Savage and Rabone type cases concerning the operational duty owed to psychiatric patients who are at risk of suicide are not affected by the judgment.